Live Blog: Tuesday’s Health Care Arguments

3:24 p.m. Today’s live blog is ending. Be sure to check back to the main blog page early tomorrow for our live blog of Wednesday’s final day of arguments. We’ll have both morning and afternoon sessions tomorrow, covering the issues of whether — if the individual mandate is struck — can the rest of the law survive, and whether Congress can require the states to expand the Medicaid program.

2:14 p.m. The stocks of health insurers and hospitals were down in early afternoon trading, following this morning’s Supreme Court arguments about the individual mandate, Bloomberg News’ Alex Wayne reports.

The S&P 500 Managed Health Care Index, which tracks stocks of insurance companies led by UnitedHealth Group Inc., fell less than 1 percent at 1:55 p.m. New York time. HCA Holdings Inc., the largest U.S. hospital operator, dropped 2.9 percent to $24.59. Tenet Healthcare Corp. declined 2 percent to $5.43.

If Justice Anthony M. Kennedy can locate a limiting principle in the federal government’s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday’s argument wound up — with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate’s savior.

1:59 p.m. “Supreme Court health care” is currently the fourth most-searched term in the United States on Google:

1:52 p.m. It was an all-star audience in the courtroom this morning, Politico reports. The list of bold-faced names included:

1:15 p.m. The transcript and audio file from this morning’s session are now available on the court’s website.

1:10 pm. More from Bloomberg News’ Greg Stohr:

The justices questioned Verrilli on whether Congress could force people to buy things such as food or burial insurance. “Can the government require you to buy a cell phone” because someone may need to call for emergency fire or police help, Roberts asked.

Justice Ruth Bader Ginsburg rejected Alito’s concern that healthy people would have to subsidize the sick. That’s how insurance works,” she said. Later, she said, “People who don’t participate in this market are making it more
expensive for those who do.”

Chief Justice John Roberts and Justice Anthony Kennedy, two conservatives who could join the four liberal justices to uphold the law, pressed an attorney for the Obama administration to say where the limits would be on federal power if people who opted against insurance were forced to buy coverage.

Both justices also raised to the two lawyers challenging the individual mandate the government’s contention that Congress is validly regulating people who already are in the market because virtually everyone is going to need healthcare at some point.

“That’s my concern in the case,” Kennedy said, noting that young, uninsured people affect the overall market by not paying into it and ultimately receiving care over the long term.

1:06 p.m. The New York Times provides some flavor for what it was like inside the courtroom:

Everything about the argument was outsized. It was, at two hours, twice the usual length. The questioning was, even by the standards of the garrulous current court, unusually intense and pointed. And the atmosphere in the courtroom, which is generally subdued, was electric.

U.S. Supreme Court justices voiced skepticism about President Barack Obama’s health-care law, hinting they might strike down his biggest domestic achievement just months before the election.

On the second of three days in the historic case, justices’ questions over the law’s requirement that Americans buy
insurance or pay a penalty indicated they might split 5-to-4, with five Republican appointees banding together to topple the law.

And other court watchers are now weighing in with early reactions. Both CNN’s Jeffrey Toobin and NBC’s Pete Williams say they “wouldn’t be surprised” if the court struck down the individual mandate, USA Today reports. Toobin went further on CNN, saying he thinks the individual mandate is in “grave danger.”

LA Daily Journal SCOTUS reporter Robert Iafolla tweets that “Kennedy, Roberts and (to a lesser extent) Alito appear in play for gov’t, but mandate’s fate seems up in the air.” SCOTUSblog tweets that “Gov’t has a shot at Kennedy, Alito, and Roberts. But no clear fifth vote. All commerce, no tax power.”

CBS News legal analyst and Atlantic writer Andrew Cohen tweets that “Initial spin will be that mandate is in trouble. Next wave of spin is going to suggest we all wait and see. Amen to No. 2.”

12:20 p.m. The New York Times is reporting that the Alliance Defense Fund was updating its Twitter feed using information “coming from a lawyer for the group in the lawyers’ lounge, an overflow room reserved for lawyers accredited to argue cases before the court.” A U.S. Marshall visited the room to tell them to stop, a court spokesperson said. Meanwhile, the Times notes that the Wall Street Journal reports it has been updating its live blog of the arguments with reporters who cycle in and out of the courtroom — also something the paper says is not allowed under court rules, which prohibit reporters from re-entering the courtroom.

Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble. It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli. On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.

Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden. At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.

Towards the end of the argument the most important question was Justice Kennedy’s. After pressing the government with great questions, Kennedy raised the possibility that the plaintiffs were right that the mandate was a unique effort to force people into commerce to subsidize health insurance but the insurance market may be unique enough to justify that unusual treatment. But he didn’t overtly embrace that. It will be close. Very close.

12:08 p.m. Bloomberg News’ initial story on the arguments. More details will be added shortly.

12:03 p.m. Today’s arguments are done. There should be more complete and nuanced reports coming from the major media shortly.

11:53 a.m. An Alliance Defense Fund update: The organization’s Twitter account now says they are updating their feed from the group’s office in Arizona, not from inside the court. But that doesn’t answer how they’ve been able to provide minute-by-minute updates this morning. A call to the group’s social media director from Bloomberg Law was not immediately returned.

The good news for Verrilli, the government, and the supporters of the mandate is that the four liberal Justices asked relatively few questions, and the questions were largely friendly. The bad news is that there is no apparent fifth vote in support of the constitutionality of the law.

When the Solicitor General argued that the mandate does not require people to purchase health care, but instead merely regulates when and how they will pay for that care, Justice Kennedy seemed skeptical, asking whether Congress’s power to regulate commerce allows it to create commerce to then regulate. Other conservative Justices – Chief Justice Roberts, and Justices Scalia and Alito – also seemed skeptical of the government’s arguments, focusing on whether there is a limiting principle. They wanted the government to explain whether Congress can force individuals to buy things other than health insurance, including cars and broccoli, or whether the government can require that individuals exercise. It will be interesting to see whether the Justices’ questions for the health care challengers reveal anything different about their inclinations.

11:34 a.m. The Washington Post is reporting that Verrilli was “assailed by skeptical questions.”

Justice Samuel A. Alito Jr. brought up burial services. Aren’t people who don’t have burial insurance making a decision about how they are going to pay for their inevitable funeral? he asked. He characterized the underlying logic as “artificial.”

The court’s conservatives peppered Verrilli with questions about whether Congress could also force Americans to buy broccoli, burial insurance, or cellular phones as part of commercial regulations down the road. Verilli said lawmakers couldn’t do that, but the justices seemed unconvinced. “Once you’re into interstate commerce and can regulate it, pretty much all bets are off,” Chief Justice John Roberts said.

11:28 a.m. Justice Sonia Sotomayor suggested the government can require people to buy insurance ahead of time “because you can’t buy it at the moment you need it,” Bloomberg News reports.

11:26 a.m. Someone from Alliance Defense Fund — a conservative legal action group — is live tweeting today’s arguments. Unclear whether they are doing so from the courtroom or the lawyer’s lounge. But in neither location is tweeting allowed.

Justice Scalia interrupted right out of gate. Chief Justice Roberts followed soon after. Justice Alito said “the mandate is forcing these people to provide a huge subsidy to insurance companies.” Justice Kennedy said that “I understand we must presume laws are constitutional,” but that the government has a heavy burden here.

Justice Scalia raised the challengers’ point, asking if the government can compel Americans to buy broccoli. “You’re not regulating health care. You’re regulating insurance,” he said.

11:02 a.m. Tom Goldstein of SCOTUSblog stepped out to provide this update:

We are halfway through the mandate argument; the [Solicitor General] is done. It is essentially clear that the four more liberal members of the Court will vote in favor of the mandate. But there is no fifth vote yet. The conservatives all express skepticism, some significant. They doubt that there is any limiting principle. But we’ll know much more after the other side goes because arguments are often one-sided like this half way through.

Justice Ginsburg has cited a friend-of-the-court briefing pointing to uncompensated care in Maryland that raised consumers’ costs by 7% to further the case that requiring people to carry a way of covering their health care is different from forcing them to buy food. Uninsured people are passing their costs on to others, she suggested, and that’s why Congress can regulate them.

Justice Breyer has also come to the aid of Verrilli with his questions, the paper reports.

10:53 a.m. “The federal government is not supposed to be a government that has all powers,” Justice Antonin Scalia said early in today’s two-hour argument, Bloomberg News reports. “It’s supposed to be a government of limited powers.” Justice Anthony Kennedy said the requirement to buy health coverage is telling an individual “that it must act.” He said,
“That changes the relationship of the government to the individual in a fundamental way.”

10:49 a.m. U.S. Solicitor General Donald Verrilli came in for some skeptical questioning during the first half of his hour-long argument today. Bloomberg News reports Justice Scalia said that the government is not suppoed to have “all powers.” Justice Kennedy, widely considered a possible swing vote, challenged the Administration lawyer “to answer what the justice says is a ‘very heavy burden of justification’ to show where the Constitution authorizes Congress to change the relation of the individual to the government,” reports the Wall Street Journal.

10:27 a.m. Bloomberg News’ Greg Stohr gave this preview earlier today of the legal issues in today’s arguments, including a look at which justices are likely to be key to the arguments.

10:07 a.m. While we wait for the first reports from inside, take a look at this scene setter filed earlier this morning by Bloomberg TV’s Megan Hughes:

10:01 a.m. And today’s arguments are underway. Now we wait to see who step out of the courtroom to file the first report.

9:53 a.m. With the court about to get underway, here’s this morning’s order of battle: U.S. Solicitor General Donald Verrilli will have one hour for argument defending the individual mandate. The hour for the challengers is split between Paul Clement and Michael Carvin, with 30 minutes each. No opinions in other cases will be announced by the court this morning, so the health care arguments will get underway at 10:00 a.m. sharp.

9:09 a.m. It looks like the 26 states challenging the Obama health care reform law are getting the legal fee deal of the century from their lawyer, Paul Clement. As previously reported, he’s charging them a flat fee of just $250,000. But the National Federation of Independent Business, which is also challenging the statute, spent more than $1.2 million on the lawsuit in 2010 alone, according to a recent disclosure of the organization, the Wall Street Journal reports. The group’s outside counsel, Michael Carvin, will argue against the individual mandate this morning.

9:03 a.m. President Obama and his supporters are trying to claim the label “Obamacare” — used by critics of the health care reform law — as their own, reports USA Today. “Obama’s Twitter account is promoting a hashtag called “I like Obamacare,” which supporters use to praise different aspects of the law. And some of Obama’s aides are starting to use the term in public,” the paper reports.

8:55 a.m. More on the cat and dog that attended yesterday’s demonstrations in front of the court, including this picture from Kaiser Health News:

Walter Kamiat, an associate general counsel of the Service Employees International Union who has filed two amicus briefs in support of the government’s case, said the health care debate is personal to him. His brother lost his health insurance after being fired as a copy editor for a New York publishing company when the recession hit, said Kamiat, 57. As for himself, “I’d like to think about the freedom to retire before I’m Medicare eligible,” he said while standing on a separate line outside the court for lawyers.

Chris Crawford and Stephan Schneider, two brothers in the Beta Theta Pi fraternity at George Washington University, braved the sun yesterday and the 35-degree cold last night to get into today’s hearing. The ordeal was evident in the face of Schneider, a Boca Raton, Florida resident who had been on line since 3 a.m. Monday: His nose was sunburned from when he napped yesterday afternoon on the sidewalk outside the court. The mandate “overreaches,” said Crawford, of Nashua, New Hampshire. “It’s the idea of the government forcing individuals to buy something.”

Peter Reischer, 18, said he recited the court briefs to an audience of five friends last night in an attempt to stay warm in their sidewalk encampment. The six are students in advanced placement government classes at Alexandria, Virginia-based Thomas Jefferson High School for Science and Technology. “My initial sympathies are with the government’s case,” said Reischer, of Arlington, Virginia.

Matt Greenspan, 18, of Alexandria, whose father is a doctor and mother is a nurse, said his mind was made up to support the health care law before he heard today’s arguments. “You are a burden on the system whether you have health care or not,” Greenspan said.

8:25 a.m. Jamie Dupree, the Washington bureau chief for WSB-AM Atlanta, gives an inside look at what it was like on the press benches at yesterday’s arguments. Minutes before the session began, “many of my colleagues are still busily reading previews of the Obama health law cases and underlining passages like they are studying for a final exam,” he writes.

7:41 a.m. On his trip to Seoul, South Korea, President Obama “has not had a great deal of opportunity to review the reports of what’s happening in Washington at the Supreme Court” but he will “be following it with interest,” his spokesman Jay Carney says, Politico reports. In a separate story, the website asks “If the Supreme Court upholds health reform’s individual mandate, will it really be a victory for President Barack Obama? Or will it just mean he gets to keep owning the least popular part of the law?”

7:35 a.m. The line for lawyers who are members of the Supreme Court bar is almost twice as long as yesterday, reports Bloomberg News’ Drew Armstrong.

7:30 a.m. Today’s demonstrations — expected to be the largest of the week — are underway in front of the court. This shot of Tea Party activists (left) and health care law supporters comes from Bloomberg News’ Drew Armstrong:

Armstrong reports: Two hours before the Supreme Court will debate the mandate, dueling protests were set up once again in front of the court. “Freedom! Freedom!” yelled opponents of the law, draped in the rattlesnake “Don’t Tread on Me” flag of the Tea Party. Supporters tried to overpower them with “The ACA works for you, works for me, works for every American family.”

Overnight line-waiters might have been better off bringing a fire kit than the court briefs several had with them. Temperatures dropped into the 30s overnight, with a freeze warning issued by the National Weather Service overnight.

7:23 a.m. Really understanding the Supreme Court is not a job for a rookie reporter. It’s an institution full of traditions and seemingly odd ways of doing business. Some of the senior members of the court’s press corps have now weighed in on yesterday’s action. Their takes include:

Lyle Denniston of SCOTUSblog: The comments and questions of the Justices during the 89-minute exchange left the distinct impression that they are prepared to rule on the constitutionality of the mandate that individuals must buy health insurance, and not push the issue off into the future. The exact route they would take was a bit uncertain, but their skepticism about taking a pass now was clear.

Nina Totenberg of NPR: If Monday’s argument was a hallmark of legal gibberish, Tuesday’s argument challenging the constitutionality of the individual mandate is likely to provide plenty of fireworks. The lawyers have already laid the fuses. Tuesday the justices will light them.

Dahlia Lithwick of Slate: While protestors outside were hollering about religion and freedom, the justices were boring those of us inside almost senseless with statutory construction. And sometimes, check that, most of the time, boring is what the justices do best.

Andrew Cohen of The Atlantic: The happiest man in Washington this afternoon? It’s got to be Robert Long. He ably served his country, received the appreciation of the Court, and now can duck out of the way and watch from afar as his colleagues blast away at each other Tuesday over the mandate itself.

7:02 a.m. With cameras prohibited inside the courtroom, it’s hard to get a sense of what it’s really like as the arguments unfold. No one sets the scene better than Art Lien, NBC’s sketch artist. Over on his blog is a powerful drawing of yesterday’s arguments, as seen from the back of the press gallery, as well as a close-up of attorney Robert Long making his case to the court.

6:57 a.m. Legal assistant Monica Haymond has been camped out at the court since Friday, waiting to hear today’s arguments over the individual mandate. Yahoo used a photo of her sitting in her boyfriend Dana Stuster’s lap as yesterday’s photo of the day. You can follow her Twitter feed, and check out her blog about sitting in line. Mazel tov, you crazy kids!

6:40 a.m. One of the most detailed looks at what the justices actually said yesterday comes from our colleague Mary Anne Pazanowski of Bloomberg BNA.

6:31 a.m. Bloomberg TV looks at President Obama’s political strategy on the health care issue:

6:12 a.m. With all the attention on the health care cases, we totally overlooked that yesterday was former Justice Sandra Day O’Connor’s birthday. She turned 82. Hat tip to the Wall Street Journal’s Jess Bravin for pointing it out.

6:11 a.m. Our friends at SCOTUSblog have culled the tape of yesterday’s 90-minute argument down to the most important 15 minutes. Listen here. If you want to hear the whole argument, it was posted by Bloomberg.com.

5:49 a.m. Welcome to Day Two of the Supreme Court oral arguments in the health care reform cases. This is your live blog to all the action. Reload this page throughout the day for our latest updates.

Yesterday’s arguments were a bit of a snoozefest, with most observers agreeing that the court will likely decide that the Anti-Injunction Act does not require the court delay a decision on the substance of the health care law until after the penalty for not buying insurance begins in 2014.

Today, by contrast, should be a lively discussion of the core of the case — can the Congress require all Americans to purchase health insurance or pay a penalty for not doing so? If you’re still getting up to speed about the issues that will be addressed today, check out this Bloomberg Law interview with New York University School of Law Professor Richard Epstein: